Supreme Court of Canada
McMartin v. The Queen,  S.C.R. 484
DAVID JAMES McMARTIN APPELLANT;
HER MAJESTY THE QUEEN RESPONDENT.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
PRESENT: Taschereau C.J. and Cartwright, Fauteux, Abbott, Martland, Judson, Ritchie, Hall and Spence JJ.
Criminal law-Capital murder-Application by defence to adjourn trial to obtain further medical evidence-Application refused-Whether Court of Appeal right in refusing leave to adduce fresh evidence of mental disorder on issue of planned and deliberate. Criminal Code, 1953-54 (Can.), c. 51, ss. 202A(2) (a), 589(1)(b).
The appellant was convicted on a charge of capital murder of his common-law wife. He did not testify. The evidence for the Crown was that he had quarrelled with his wife after she returned to their house at 1:30 a.m. on the morning of October 11, 1962. When the children left for school at 8:15 a.m., the wife was alive. Sometime after 9 a.m. the appellant was seen at the back of his house with an axe; about a minute and a half later he was at his front gate and on his way to telephone the police. When the police arrived, the wife was dead with severe lacerations on the right side of the face and head. There was no evidence of any persons being in the house between 8:15 am. and 9:30 a.m. other than the appellant and his wife. The Court of Appeal affirmed the conviction and refused an application by the appellant to introduce fresh evidence before it as to his mental condition at the time of the crime. On appeal to this Court the Crown was called upon to answer only the grounds (1) as to whether the trial judge should have granted a defence motion for an adjournment in order for it to obtain and introduce further medical evidence; and (2) as to whether the defence motion before the Court of Appeal to adduce fresh evidence should have been granted.
Held: The appeal should be allowed, the conviction quashed and a new trial ordered.
Per Taschereau C.J. and Fauteux, Abbott, Martland, Judson, Ritchie, Hall and Spence JJ.: The application for an adjournment of the trial appeared to have been directed to the issue of insanity which was not pleaded at the trial. The question of whether or not an adjournment
is to be granted rests in the discretion of the judge who is trying the case, and the affidavit filed at the hearing of this appeal did not contain sufficient information as to the circumstances under which this application was made to justify the conclusion that there was any error in principle in refusing the adjournment.
The proposed evidence, which the defence sought to introduce in the Court of Appeal, was not directed towards proving that the appellant was legally insane at the time of the crime, but rather towards showing that a psychiatric examination after the trial had disclosed that he had long been suffering from a disorder of the mind which manifested itself in impulsive, unpredictable and dangerous behaviour, and that his long history of mental disorder was a relevant circumstance proper to be considered, together with all the other circumstances disclosed in the evidence, in determining whether or not the murder was planned and deliberate on his part. It is recognized that special grounds must be shown in order to justify the Court of Appeal in exercising the power conferred upon it by s. 589(1) of the Criminal Code. The evidence tendered on such an application was not to be judged and rejected on the ground that it did not disprove the verdict as found by the jury, or that it failed to discharge the burden of proving that the appellant was incapable of planning and deliberation or that it did not rebut inferences which appeared to have been drawn by the jury. It was enough if the proposed evidence was of sufficient strength that it might reasonably affect the verdict of a jury, R. v. Buckle, 94 C.C.C. 84, referred to. Under the present circumstances it could not be said that the conduct of the appellant's counsel indicated lack of reasonable diligence to obtain such evidence before the trial. The evidence in question, like that in Regina v. More, [19631 S.C.R. 522, might have caused the jury to regard it as more probable that the accused's final act was prompted by a sudden impulse rather than by consideration. It should have been admitted by the Court of Appeal. Without the evidence of the appellant's mental history and condition, it could not be said that all the circumstances bearing on the question of whether the murder was planned and deliberate have been passed upon by a jury.
CARTWRIGHT J. agrees subject to a reservation regarding the applicability of the rule in Hodge's case.
APPEAL from a judgment of the Court of Appeal for British Columbia', affirming the conviction of the appellant for capital murder and refusing leave to introduce further evidence. Appeal allowed and new trial ordered.
H. A. D. Oliver, for the appellant.
W. G. Burke-Robertson, Q.C., for the respondent.
The judgment of Taschereau C.J. and Fauteux, Abbott, Martland, Judson, Ritchie, Hall and Spence JJ. was delivered by
RITCHIE J.:-This is an appeal from a judgment of th( Court of Appeal of British Columbia by which that Court
with Davey J.A. dissenting, affirmed the conviction of the appellant for the capital murder of Celestine Bob and unanimously refused an application made on his behalf to introduce further evidence before it as to his mental condition at the time of the crime.
The appellant did not testify and no evidence was introduced on his behalf at the trial so that the jury's verdict was of necessity based on the account given by the various Crown witnesses of the circumstances surrounding the killing.
This account disclosed that at about 1:30 a.m. on the morning of October 11, 1962, Celestine Bob returned to the house near the settlement of Lillooet, B.C., where she and the appellant had been living with their two children as man and wife for a number of years; she was accompanied by a man named Stavast who appears to have given her a lift in his car and who came into the house for half an hour and had a glass of beer and a discussion or argument with the appellant about "work". Marilyn Bob, a 14-year old child, testified that after Stavast had left she heard the appellant and her mother "arguing about how come that man took her home", but there is no evidence of any further incident until after the two children left for school at 8:15, at which time they both say that their mother was alive and the little boy, Percy Bob, says that he saw her waving to them when they were waiting for the school bus. Sometime after 9 a.m., a man named Whitney, who was walking along the road behind and to one side of the McMartin house, noticed the appellant at the back of his house pick up an axe and knock a piece of wood from its blade, and about a minute and a half later he encountered the appellant at his front gate; he was then breathing heavily and asked Whitney to come with him to the shoemaker's who appears to have had the only telephone in the immediate vicinity. On arriving at the shoemaker's, the appellant telephoned to the police at Lillooet saying, in part, "Come down as quick as possible and you'll find out for yourself". As a result, Corporal Chiunyk of the R.C.M. Police drove at once to the shoe-maker's and accompanied the appellant to his house where he was shown the dead body of Celestine Bob with severe lacerations on the right side of her face and head, and he then noticed an axe in a box in the corner of the same room. The appellant declined to say anything until he saw his
lawyer and when the Corporal told him that he would have to take him into custody he replied, "I am prepared". At the trial Dr. Clark testified that it was very likely that the deceased had died as a result of blows from the axe found in the room and that she had probably been hit when asleep.
For the purpose of this case the relevant definition of capital murder is that contained in s. 202A(2) (a) of the Criminal Code which reads as follows:
(2) Murder is capital murder, in respect of any person, where (a) it is planned and deliberate on the part of such person, .. .
In More v. The Queen, Cartwright J. commented on these provisions as follows:
The evidence that the murder was planned was very strong, but, as was properly pointed out to the jury by the learned trial judge, they could not find the accused guilty of capital murder unless they were satisfied beyond a reasonable doubt not only that the murder was planned but also that it was deliberate. The learned trial Judge also rightly instructed the jury that the word "deliberate", as used in s. 202A(2)(a), means "considered, not impulsive".
Other meanings of the adjective given in the Oxford Dictionary are "not hasty in decision", "slow in deciding" and "intentional". The word as used in the subsection cannot have simply the meaning "intentional" because it is only if the accused's act was intentional that he can be guilty of murder and the subsection is creating an additional ingredient to be proved as a condition of an accused being convicted of capital murder.
In dissenting from the opinion of the majority of the Court of Appeal in the present case, Davey J.A., would have ordered a new trial on the ground that, in light of the addresses of counsel, the charge of the learned trial judge might have caused the jurors to interpret the word "deliberate" as meaning "intentional" and that they might thus have failed to apply the proper test in determining whether the murder was "planned and deliberate" within the meaning of those words as they are used in the above Section. Mr. Justice Davey was also of opinion that the trial judge had erred in his directions to the jury as to the evidence of deliberation.
Counsel for the appellant adopted this reasoning of Davey J.A. and contended also that the trial judge erred in relating the evidence of the witness Whitney to the day of the crime as that witness had been unable to state the day of the week or month on which the events he described took place.
In this Court, however, it was only considered necessary to call upon the respondent's counsel in respect of the 6th and 12th grounds of appeal, and as I am unable to find any errors of substance in the charge of the learned trial judge, I propose to limit myself to a consideration of the issues raised by these grounds which are set out in the notice of appeal as follows:
The Court of Appeal failed to hold that the learned trial judge erred in failing to grant defence counsel's motion for an adjournment to enable the defence to obtain and introduce further medical evidence.
12. The Court of Appeal erred in refusing to grant the appellant's motion to adduce fresh evidence before it.
The record of proceedings as contained in the Case on appeal in this Court makes no reference whatever to defence counsel's motion for an adjournment, and the only source of information as to what material the learned trial judge had before him on that motion is contained in an affidavit of David Moffett which was filed at the hearing of this appeal and which appears to have been used in support of the application to adduce fresh evidence which was made to the Court of Appeal of British Columbia.
This affidavit stated that before the preliminary hearing Mr. Moffett, who represented the appellant in the lower courts, suspected that the accused might be suffering from mental illness and might have been legally insane at the time of committing the offence, and that he asked the presiding magistrate for directions as to the obtaining of a psychiatric report and wrote to the Attorney-General of British Columbia requesting an examination of the accused to find out if he were medically fit to stand trial or mentally ill at the time of the commission of the offence. The last two paragraphs of this affidavit read as follows :
That in due course I was advised and verily believed that the accused had been examined by Dr. J. W. Thomas and I was not then aware that Dr. Thomas' terms of reference did not include any examination of the accused with a view to ascertaining his sanity or insanity at the time of the commission of the offence.
That shortly before the date of Trial I became aware of the contents of Dr. Thomas' medical report and thereupon applied to the learned presiding Judge at the Quennel assizes, the Honourable Mr. Justice Ruttan, for an adjournment to enable a further psychiatric examination to be carried out, which application was refused by the said learned presiding Judge.
The question of whether or not an adjournment is to be granted rests in the discretion of the judge who is trying the case, and the Moffett affidavit does not, in my opinion, contain sufficient information as to the circumstances under which this application was made to justify the conclusion that there was any error in principle in refusing the adjournment.
This application, like that which had earlier been made to the Attorney-General, appears to have been directed to the issue of insanity which was not pleaded at the trial, not-withstanding the fact that according to the report made to the Court of Appeal by Ruttan J. the psychiatrist, Dr. J. W. Thomas, was in the court throughout the proceedings and was not called by either the Crown or the defence. It is difficult to understand what material defence counsel was able to put before the trial judge on this issue, particularly in light of the fact that medical evidence ultimately obtained for the defence did not bear on the question of insanity at all.
The appellant's motion for an order granting leave to call fresh evidence at the hearing of the appeal stands, however, on a very different footing. The proposed evidence was not directed towards proving that the appellant was legally insane at the time of the crime, but rather towards showing that a psychiatric examination after the trial had disclosed that he had long been suffering from a disorder of the mind which manifested itself in impulsive, unpredictable and dangerous behaviour, and that his long history of mental disorder was a relevant circumstance proper to be considered, together with all the other circumstances disclosed in the evidence, in determining whether or not the murder was planned and deliberate on his part.
In addition to the affidavit of Mr. Moffett, to which reference has been made, this application was supported by the evidence of Dr. Gould and Dr. Tyhurst and by an affidavit of the appellant which disclosed that Dr. Tyhurst first examined him after his conviction and concluded by saying:
I am advised by my legal advisers and verily believe that had the evidence of Dr. Tyhurst and Dr. Gould been introduced at my trial it might reasonably have induced the jury to change its view regarding my guilt.
The jurisdiction of the Court of Appeal to admit fresh evidence is to be found in s. 589(1) (b) of the Criminal Code which reads, in part, as follows:
589. (1) For the purposes of an appeal under this Part the court of appeal may, where it considers it in the interest of justice,
(b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial, (1) to attend and be examined before the court of appeal .. .
It is clearly not in the interests of justice that this privilege should be extended to an appellant as a matter of course, and although the rules applicable to introducing fresh evidence before the Court of Appeal in a civil case do not apply with the same force to criminal matters, it is nevertheless recognized that special grounds must be shown in order to justify the Court in exercising the power conferred upon it by s. 589(1).
One of the grounds advanced by Sheppard J.A. for rejecting the proposed evidence in the present case was that it had not been shown that the diligence required by R. v. Martin, had been exercised in obtaining it at or before the trial. In R. v. Martin, supra, Bird J.A. who delivered the decision of the majority of the Court of Appeal of British Columbia said, in regard to the evidence sought to be introduced in that case:
No effort was then made to procure McLeod's attendance at the trial, nor was application made for an adjournment on account of his absence.
In these circumstances it is reasonable to infer that the defence elected to proceed to trial without that evidence. Indeed, I understood counsel for appellant to concede before us that such was the case.
The Court of Criminal Appeal in England refused such an application in what appears to me to be a parallel case, viz., Rex v. Weisz, (1920) 15 Cr. App. R. 85, wherein the Earl of Reading, C.J. said: "The appellant's legal advisers knew the case they would have to meet, and no application was made to adjourn the trial ... The policy was deliberate of resting the defence upon the evidence of the accused ... and no precedent could be cited for calling a fresh witness in those circumstances".
More recently, Bird J.A. speaking on behalf of the same Court in R. v. Lalcatos appears to have adopted the following interpretation of the requirements stated in Rex v. Martin, supra:
.. that before fresh evidence will be admitted by this Court, it must be shown: (a) At the time of the trial the accused (appellant) either was not aware of the evidence proposed to be adduced or if he then had knowledge
of it that all reasonable diligence had been exercised at or before the trial to adduce that evidence; (b) That the evidence if adduced might reasonably have induced the trial tribunal to change its view of the guilt of the accused.
It appears that in the present case, Dr. Tyhurst knew nothing of the matter until after the trial and although it may be said that further efforts could have been made before the trial to find out whether the evidence he would be able to give after examination might be relevant to the issue of planning and deliberation, it must at the same time be remembered that the provisions of s. 202A(2) (a) only became law in July, 1961, that the case of Regina v. More, supra, had not been decided at the time of the preliminary hearing and the trial in October and November of 1962, and that counsel then acting for the appellant apparently did not appreciate the full significance of psychiatric evidence on the issue of planning and deliberation. I am not prepared to say that this indicated lack of reasonable diligence on his part.
Furthermore, unlike the case of Rex v. Martin, supra and Rex v. Weisz, in the present case efforts were made to obtain a psychiatric report from the Attorney-General and a motion for an adjournment was made to the trial judge for the same purpose. It is true that Ruttan J. exercised his discretion by refusing the appellant's application, but this does not detract from the fact that an effort was made.
In all the circumstances, if the evidence is considered to be of sufficient strength that it might reasonably affect the verdict of the jury, I do not think it should be excluded on the ground that reasonable diligence was not exercised to obtain it at or before the trial.
Having heard the evidence which was sought to be introduced in the present case, the Court of Appeal dismissed the appellant's application, the majority of the Court (Bird, Davey and Tysoe JJ.A.) resting their judgment on the ground expressed by Davey J.A. in the concluding paragraph of his reasons for judgment in the following terms:
I would dismiss the motion for leave to introduce evidence of appellant's alleged mental disorder, because appellant relates it to no incident proximate in time to the killing that could be said to rebut any inference of deliberation by showing that the killing was the result of sudden passion or emotion aroused in a disordered mind by the incident.
As has been indicated, the evidence thus rejected by the Court of Appeal included that of Dr. Tyhurst, the Head of the Department of Psychiatry at the Vancouver General Hospital and the Shaughnessy Veterans Hospital, who testified that the appellant had been a patient in the psychiatric division of two hospitals as well as having been admitted to one mental hospital in Alberta, and that his family history was very disordered, his mother having committed suicide and family members having been in mental hospitals. This witness went on to express the following conclusion which he had reached after spending a good deal of time with the appellant:
It is my conclusion that he is a very unstable paranoid individual, who has a lifelong history of personal instability, who responds impulsively and against his best interests on slight provocation, and sometimes on none at all, actually, because of his suspiciousness; that he is unpredictable and, I would say, dangerous, actually.
In rejecting this evidence because it could not be related to any incident proximate in time to the killing which might have aroused sudden passion or emotion in a disordered mind, the Court of Appeal appears to me to have left out of account the fact that the very evidence which was so rejected was to the effect that the disorder in the mind of the appellant was such that he sometimes acted impulsively, unpredictably and dangerously with no provocation at all.
The majority of the Court of Appeal also appear to have considered it to be a necessary condition for the admissibility of this evidence that it should be such as to "rebut any inference of deliberation" by showing affirmatively that the killing was the result of sudden passion or emotion. This thinking is also reflected in the reasons for judgment of Sheppard J.A. who said:
There is no evidence that the accused was in fact provoked, and in any event, there was ample time between 2:00 a.m, and 9:00 a.m. for any passion to have cooled
As the result, there is no evidence for the accused that the recurring paranoic condition referred to by Dr. Tyhurst was operating to any extent at the time of the murder, and in any event, assuming the condition had recurred, such condition does not preclude the accused taking life by a murder planned and deliberate. Hence the evidence does not disprove the verdict as found by the jury.
Wilson J.A. expressed himself even more forcibly in the same vein saying:
The attempt here is, with the flimsiest evidence of provocation, to prove that this man was incapable of planning and deliberation ...
and later in his reasons:
Further, I do not think the evidence of Dr. Tyhurst establishes that this man was incapable of planning and deliberation, however unreasonable the result of such planning and deliberation might appear to the reasonable man. I have no hesitation in rejecting this evidence.
With the greatest respect, it appears to me that the evidence tendered by the appellant on such an application as this is not to be judged and rejected on the ground that it "does not disprove the verdict as found by the jury" or that it fails to discharge the burden of proving that the appellant was incapable of planning and deliberation, or that it does not rebut inferences which appear to have been drawn by the jury. It is enough, in my view, if the proposed evidence is of sufficient strength that it might reasonably affect the verdict of a jury.
I would respectfully adopt the following views expressed on behalf of the majority of the Court of Appeal of British Columbia by Sloan C.J.B.C. in R. v. Buckle, where he said :
In my opinion the rule to be applied in criminal cases in relation to the introduction of fresh evidence and consequential relief which may be granted by the Court, is wider in its discretionary scope than that applied by the Court in civil appeals. If the newly-discovered evidence is in its nature conclusive, then the Court of Appeal, in both civil and criminal cases, may itself finally deal with the matter ... If, on the other hand, in a criminal case, the new evidence does not exert such a compelling influence, but is however of sufficient strength that it might reasonably affect the verdict of a jury, then, in my opinion, the Court may admit that evidence and direct a new trial, so that such evidence might be added to the scale and weighed by the trial tribunal in the light of all the facts.
It is to be noted that the reasons of Sloan C.J.B.C. in R. v. Buckle, supra, were expressly adopted on behalf of the Court of Appeal of British Columbia by Bird J.A. in the recent case of R. v. Lakatos, at page 391.
The bearing of psychiatric evidence on the question of whether or not a murder was planned and deliberate on the part of the accused was considered by this Court in More v. R., supra,
where Cartwright J., speaking of the medical evidence there tendered, said at p. 534:
The evidence of the two doctors is not relied on by the defence as raising the question whether the accused was legally sane. Its importance is that it would assist the jury in deciding the question whether the accused's action in pulling the trigger, which so far as this branch of the matter is concerned was admittedly the intentional act of a sane man, was also his deliberate act. The question is one of fact and its solution involves an inquiry as to the thinking of the accused at the moment of acting. If the jury accepted the evidence of the doctors it, in conjunction with the accused's own evidence, might well cause them to regard it as more probable that the accused's final act was prompted by sudden impulse rather than by consideration. On this question the accused was entitled to have the verdict of a properly instructed jury.
In deciding whether or not the evidence sought to be introduced in the present case falls within the same category, it appears to me to be helpful to consider that evidence in light of the charge of the learned trial judge.
As has been indicated, the evidence identifying the appellant with the killing was entirely circumstantial and in this regard Ruttan J. properly instructed the jury as to the rule in Hodges case. In dealing with the additional question of whether or not the murder was planned and deliberate on the part of the appellant, he made the following comment:
As a final conclusion from circumstantial evidence the Crown asks you to find that not only did the accused commit this murder, but that the accused did it by planned and deliberate actions. I shall explain to you in a moment the significance of that last submission; briefly I will say that the ingredient of planning and deliberate action makes a difference between a capital murder and a non-capital murder.
And later in the same paragraph he said:
I should point out to you, I think it was Crown counsel suggested it was a deliberate action because there were no less than six wounds found by the doctor. There were four lacerations on one side in the same wound area and one below and one on the other side of the face. Well, here is an illustration of two conclusions you may draw from the same circumstances, because that might indicate to you that the deed was committed in a frenzy and in a highly emotional state, delivering six blows where one would do, which might suggest to you that it wasn't planned, or deliberate. I just suggest this to you to illustrate the circumstantial evidence that is so significant and important in this case, and that you must consider in drawing your conclusions.
As I understand this part of the charge, the learned trial judge was indicating to the jury that the circumstances were not only consistent with
the act having been planned
and deliberate on the part of the appellant, but were also consistent with the deed having been committed "in a frenzy and in a highly emotional state ... which might suggest .. . that it was not planned or deliberate". He was thus not telling the jury that because the circumstances were consistent with lack of planning and deliberation they must of necessity acquit the appellant, but rather that the circumstances were consistent with two alternative interpretations which must be weighed in the balance before a verdict could be reached. There was, in my view, no error in this direction.
Under all the circumstances, it appears to me that the evidence of Dr. Tyhurst, like that of the doctors in More v. R., supra might have caused the jury "to regard it as more probable that the accused's final act was prompted by sudden impulse rather than by consideration".
For these reasons I am of opinion that the evidence of Dr. Tyhurst should have been admitted by the Court of Appeal in accordance with the practice outlined by Sloan C.J.B.C. in R. v. Buckle. I do not, however, consider that there was any error in rejecting the evidence of Dr. Gould which does not appear to me to bear upon the question here at issue.
It is not suggested that the evidence in this case did not amply support the verdict of the jury. There are many circumstances in addition to the way the blows were delivered which are consistent with the murder having been planned and deliberate, but the question raised by this appeal is whether, if the evidence of Dr. Tyhurst had been before them, the jury would inevitably have reached the conclusion which they did.
In my opinion, without the evidence of the appellant's mental history and condition, it cannot be said that all the circumstances bearing on the question of whether the murder was planned and deliberate have been passed upon by a jury, and I would accordingly allow this appeal, quash the conviction and direct that there be a new trial.
CARTWRIGHT J.:-I concur in the disposition of this appeal proposed by my brother Ritchie and I agree with his reasons subject to one reservation.
After quoting certain passages from the charge of the learned trial judge to the jury my brother Ritchie says:
As I understand this part of the charge, the learned trial judge was indicating to the jury that the circumstances were not only consistent with
the act having been planned and deliberate on the part of the appellant, but were also consistent with the deed having been committed "in a frenzy and in a highly emotional state ... which might suggest ... that it was not planned or deliberate". He was thus not telling the jury that because the circumstances were consistent with lack of planning and deliberation they 'must of necessity acquit the appellant, but rather that the circumstances were consistent with two alternative interpretations which must be weighed in the balance before a verdict could be reached. There was, in my view, no erorr in this direction.
For the reasons given by me in the case of The Queen v. David Mitchell, judgment in which is being given at the same time as in this case, I am of opinion that where the evidence relevant to the issue whether or not a murder was planned and deliberate on the part of the accused is entirely circumstantial it is necessary for the trial judge to charge the jury on that issue in accordance with the rule in Hodge's case. In so far as the passage quoted from the reasons of my brother Ritchie indicates a different view I am unable to agree with it.
I would dispose of the appeal as proposed by my brother Ritchie.
Appeal allowed, conviction quashed and new trial ordered.
Solicitors for the appellant: Oliver, Millar & Co., Vancouver.
Solicitor for the respondent: R. D. Plommer, Vancouver.
 (1963), 43 W.W.R. 483, 41 C.R. 147 [19641 1 C.C.C. 217.
  S.C.R. 522 at 533, 534, 41 C.R. 98, 3 C.C.C. 289, 41 D.L.R. (2d) 380.
 (1945), 60 B.C.R. 554, 1 W.W.R. 1, 82 C.C.C. 311, 1 D.L.R. 128. 2
 (1961), 129 C.C.C. 387 at 389, 35 C.R. 15.
 (1920), 15 Cr. App. R. 85.
 (1949), 94 C.C.C. 84 at 85, 86, 7 C.R. 485, 1 W.W.R. 833, 3 D.L.R. 418.
 (1838), 2 Lewin C.C. 227, 168 E.R. 1136.
  S.C.R. 471
 (1838), 2 Lewin C.C. 227, 168 E.R. 1136.